Selected Case Outcomes

Mylan Pharmaceuticals v. Procter & Gamble Co.

In a matter in the Southern District of New York, Mylan Pharmaceuticals (Mylan) sued Analysis Group client Procter & Gamble (P&G) over allegedly false and misleading statements in its advertising for Prilosec OTC, a non-prescription version of the acid reflux medication omeprazole. Mylan manufactures a generic version of prescription-strength omeprazole, and claimed that it lost sales because of P&G's allegedly false and misleading advertising claims that Prilosec OTC was the same drug as prescription omeprazole.

Procter & Gamble counsel Kramer, Levin, Naftalis & Frankel LLP retained Analysis Group to provide a rebuttal damages analysis related to Mylan's claim. Managing Principals Paul Greenberg and Alan White led a team supporting academic affiliate Professor Ernst Berndt in his independent analysis of all market factors that may have contributed to the decline in sales of Mylan's drug. Professor Berndt evaluated the impact of prices, drug quality, and marketing efforts and determined that Prilosec OTC outsold Mylan's drug primarily because of lower prices and availability without a prescription, rather than the alleged false and misleading advertising. Professor Berndt's analysis further demonstrated that consumer recall of P&G's Prilosec OTC advertising was low, and that it was difficult to establish a direct link between P&G's advertising and Mylan's lost sales.

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